Estate Planning Law

What About The Surviving Spouse's Rights?

A common misconception is that, upon death, all of an individual’s property passes directly to the surviving spouse. This is simply not the case. In Missouri, if a person dies without having left a will, the surviving spouse is entitled to receive one-half (1/2) of the estate if the deceased is survived by children, and the first $20,000 from the estate if the surviving spouse is also the parent of all of the surviving children. This share is in addition to certain exempt property and other statutory allowances. The exempt property is that which the spouse or the unmarried minor children are entitled to receive absolutely, without regard to any provisions the deceased might have made for the disposition of other assets. The exempt property includes the family Bible, books, clothing, household appliances, furniture, one automobile, and the like. The support allowance is an award made to the surviving spouse for his or her maintenance (and that of the unmarried minor children) for a period of one year after the deceased’s death. The amount of the award is judged by the family’s previous standard of living.

On the other hand, in Missouri (even if an individual leaves a will) the spouse cannot be completely disinherited unless some form of contractual arrangement has been made before death. For example, a spouse is entitled to receive as his or her minimum share either one-half (1/2) of the deceased’s property if there are not children or grandchildren, or one-third of the property if the deceased spouse is survived by children or grandchildren.

This participation in the deceased’s estate is subject to the claims of creditors, and is in addition to the survivor’s statutory allowances and exempt property as discussed above. However, in determining the statutory percentages, certain other property received by the survivor (such as life insurance, joint property and trust assets) must also be taken into account.

If the deceased leaves a will giving the spouse less than these percentages, the spouse may within a specified time elect to take against the will and thus receive the statutory share instead of the provisions made in the will. The probate division is required to notify the surviving spouse of this right of election shortly after the will is probated. Omitted spouses, or those who were married after the deceased’s will was executed, may claim an intestate share of the estate. In certain cases, similar provisions are also included for any children who might have been born after the will was executed.

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